In a fit of sloth, Microsoft Corp. (MSFT) has become among the companies to outsource/automate its Digital Millennium Copyright Act (DMCA) [PDF] (see Title 17 of the U.S. Code) takedown request process. Unfortunately, its partners' codes appear to be badly broken and posting a whole host of false positives.

For those unfamiliar, the DMCA gives an apparatus where companies can send requests to search engine firms like Google Inc. (GOOG), demanding they remove certain search results that are believed to contain "stolen" intellectual property. By blacklisting sites, companies can stop users from finding them and (in theory) halt the spread of the "stolen" work.

In fact Microsoft's third-party DMCA takedown contractor Marketly llc, asked Google to remove "bing.com" from its search results 11 times. Microsoft's contractor also asked Google 335 times to take down its own homepage, on Microsoft's behalf.

In a testimonial on its homepage Marketly quotes Microsoft as pleased with its performance, quoting, "Marketly has engineered solutions that address today’s anti-piracy challenges, producing quantifiable results for Microsoft. We are pleased with Marketly’s responsiveness. They have been very easy to work with. – Online Piracy Senior Program Manager, Microsoft Corporation..."

Those takedowns were among the high profile targets of a July 27, 2012 takedown request list on Google's clearinghouse of takedown information and chronicled by chillingeffects.org – a collaboration between the Electronic Frontier Foundation (EFF) and various law school professors. Among other high profile targets of Microsoft's/leakid's July scattershot include a number of news sites, such as BBC News, CBS Corp. (CBS), Rotten Tomatoes, TechCrunch, Time Warner Inc.'s (TWX) CNN, ScienceDirect, RealClearPolitics, and The Huffington Post (among others).

Microsoft's contractors have sent out nearly 5 million takedown requests to Google alone, so it's easy to note how such sloppy errors could occur, though you'd think the partners could be a bit smarter with their filtering.

While I don't know if jail time is appropriate, OP nailed the problem on the head. Currently there is no penalty for filing an incorrect or (eventually found to be) baseless DMCA takedown request.

You can be found guilty of perjury if you don't actually own the copyright, but you can always claim "Oh I thought his video on installing cat 6 cable violated the copyright on my video on tabby cats." As long as you own the copyright on the tabby cat video, you're fine.

Given a system where there's there's no penalty for overreaching copyright claims, it's hardly surprising that copyright owners put little to no effort into accuracy, and have adopted a "if in doubt, take it down, let the actual owners and the courts sort it out" approach. In such an environment, free speech is at risk as it's difficult to distinguish between taking down videos and stuff because your automated system thought it violated your copyright, versus because you disagreed with it.

Yes but there is a huge difference between purposely issuing such notices because you can and won't be penalized, and it being an accident due to an automated system. The former deserves a nice fine for sure, but the article is about their automated system issuing out bogus notices, not issuing them for the sake of doing so (which is *mentioned* in the article, but not what it's about)

While that's likely true, it doesn't mean it cannot happen. A bug from a corner case in the code that nobody thought was possible or nobody thought of. Happens all the time even with thorough testing, that's why many products ship and get patched later.

Just because it has classically worked like that (put it out there, patch it/fix it later), doesn't mean that it's the correct way of doing it. There's a reason that PC gaming has slowly been dying, and it sadly doesn't have to do with piracy or cost, it's the lack of well developed games.

Consider the fact that for each and every DMCA takedown, Google has to invest time and money into investigating every single one. In effect, it's a way for Microsoft (and others) to bleed Google dry, one drop at a time.

Personally, I think some kind of fine system should be in place for improper DMCA takedowns. The current system has provides all the power for the issuer of the takedown, and none for the entity being issued. Make it enough that it encourages companies to double check their data before issuing it. $10k per improper takedown? I don't know, but that would be a good start.

free speech can and should not be "patched later"If the system has a bug it doesn't matter. Bogus takedown attempts should be fined at the minimum, and companies with a high percentage of bogus attempts should be investigated for fraud and slander.

Fines from such attempts should be used towards supplementing legal assistance of those appealing requests.to continue discouragement, fines should be progressive and multiply.

There should not be a "good enough" or "close enough" attitude on this matter. The internet is already at enough risk.

So you just have the software flag sites for verification by an actual person before the takedown notice is filed, instead of automatically sending takedown notices for any site it flags.

In fact, I think they should ban automated takedown notices completely. There should have to be a human verification prior to the notice, and their name should be on the takedown, so somebody is responsible for the repercussions of fraudulent notices.

quote: there is a huge difference between purposely issuing such notices because you can and won't be penalized, and it being an accident due to an automated system

Maybe the problem is that people are allowed to use automated systems to issue these notices. If you construct an automated system and you have reason to believe it will result in the violation of laws then that doesn't make you less guilty.

"We are going to continue to work with them to make sure they understand the reality of the Internet. A lot of these people don't have Ph.Ds, and they don't have a degree in computer science." -- RIM co-CEO Michael Lazaridis